IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 21109 of 2007(K)
1. R.PRAKASAN, KOIPPELLI, KIZHEKKETHIL,
... Petitioner
Vs
1. TRAVANCORE DEVASWOM BOARD, REPRESENTED
... Respondent
2. COMMISSIONER, TRAVANCORE DEVASWOM BOARD,
3. ASSISTANT DEVASWOM COMMISSIONER,
For Petitioner :SRI.P.RAVINDRAN
For Respondent :SRI.D.SREEKUMAR, SC, TDB
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :23/08/2007
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 21109 OF 2007
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Dated this the 23rd day of August, 2007
J U D G M E N T
Petitioner is a Sambathi under the first respondent Board
and has been posted at the Thrippakkudam Devaswom since
16/7/06. Ext.P2 is a show cause notice issued by the 2nd
respondent, in which certain allegations of misconduct have been
raised against th petitioner, based on a report of the Sub Group
Officer. It is also stated that the Sub Group Officer has reported
that in the circumstances narrated therein, petitioner should be
immediately transferred from the Sub Group. For the
misconducts alleged, he was called upon to show cause why
further action should not be initiated against him. On receipt of
Exhibit P2, petitioner submitted Ext.P3 reply. In Ext.P3, he has
made allegations against the Sub Group Officer and concluded by
stating that it was on account of his refusal to obey the illegal
demands of the Sub Group Officer that the illmotivated report
was furnished by the Sub Group Officer. He therefore requested
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the authorities to exonerate him from the charges. Thereafter
petitioner received Ext.P4 during May 2007, whereunder he has
been transferred to Harippad Devasom. Against Ext.P4 order of
transfer, petitioner submitted Ext.P5 appeal and during its
pendency he was allowed to continue at Thrippakkudam
Devaswom itself. Later by Ext.P6, he was relieved from the post
and thereafter he got Ext.P7 order dated 8/6/07, which is the
proceedings of the Devasom Commissioner rejecting his appeal.
Challenging Exts.P4 and P7 and to direct the authorities to allow
him to continue at Thrippakkudam Devaswom for a period of
three years from 16/7/06, this writ petition has been filed.
2. The respondents have filed a statement. It is stated
that the Sub Group Officer submitted a report containing serious
allegations against the petitioner and on the basis of the report,
Ext.P2 show cause notice was issued. It is also stated that it is
on the basis of the report of the Sub Group Officer that the
petitioner was transferred to Harippad Devaswom. According to
the Board, the transfer norms, in particular Clause 3 thereof,
empowers the authorities to transfer an employee on the basis of
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complaints and lapses. It is also stated that the appeal filed by
the petitioner before the 2nd respondent has been rejected on the
basis of the “aforementioned report of the 3rd respondent”, the
Sub Group Officer.
3. The learned counsel appearing for the writ petitioner
submits that by Ext.P2 show cause, the petitioner was called
upon to show cause on various allegations including as to why he
should not be transferred from Thrippakkudam and that reply has
been given. Before considering or taking a decision on the reply
so given, Ext.P4 order of transfer was issued. According to him, it
is only on the basis of the report of the Sub Group Officer, whose
illegal demands were not acceded by the petitioner. The learned
counsel submits that the transfer norms permit an employee to
continue at a station for a minimum period of three years and
that except in exceptional situation, the employees should not be
disturbed before expiry of the period.
4. I have considered the submissions of the learned
counsel. On going through Ext.P2 show cause notice, I notice
that it was issued calling upon the petitioner to show cause as to
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why disciplinary action should not be initiated against him. The
allegations of misconducts based on which action is proposed,
have been mentioned in the show cause notice. Show cause
notice also mentioned that in the background of the allegations of
misconduct, the report of Sub Group Officer requires that the
petitioner shall be transferred from out of the Devaswom
immediately. According to me, he was called upon to show cause
only against the allegations of misconduct, and not against that
part of Ext.P2, wherein it mentions about the report for
transferring him from the Devaswom. Therefore, the contention
of the petitioner that before a decision was taken in the light of
the reply submitted by the petitioner, he has been transferred is
without any substance.
5. As regards the contention of the learned counsel for
the petitioner for continuance of an employee at a place for three
years and except in exceptional situation the employee should
not be disturbed, that cannot be reason for retaining the
petitioner at a station in the light of the allegations that are
raised against him. In any case, such norms cannot bind the
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Devaswom in all circumstances and cannot be a foundation for
continuance. Therefore the contention that Ext.P4 has been
issued without any application of mind does not survive.
6. Ext.P5 appeal has been decided by Ext.P7. Ext.P7
does not contain any reason except that show cause notice has
been given. The statement filed by the Board shows that the
appeal was rejected on the basis of the report of the 3rd
respondent, Sub Group Officer. In the light of the fact that the
petitioner has raised allegations against the 3rd respondent, in the
reply to the show cause notice and also in the appeal
memorandum filed by him, the appellate authority ought not
have confined its examination to the report of the 3rd respondent
alone. Appellate authority should have independently examined
the merits of the contentions, which has not been done.
Therefore, Ext.P7, to the extent it rejects the appeal of the
petitioner reflects non application of mind and requires to be
quashed.
7. Accordingly, Ext.P7, to the extent the petitioner’s
appeal has been rejected, is quashed and the 2nd respondent will
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reconsider Ext.P5 appeal of the petitioner, as expeditiously as
possible and pass fresh orders thereon. This shall be done within
a period of four weeks from the date of receipt of a copy of this
judgment.
Writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE.
Rp